For the first time, the claim of a Russian seafarer against a Russian company, owner of a vessel under a flag of convenience, was supported

It was not easy to achieve this. The outcome, although not yet final, was preceded by a long history of actions both on the part of the seafarer, and on the part of the trade union and the transport prosecutor's office. For the first time, the situation in which boatswain Nikolay Mikhailovich Kharchenko was found out in the SUR primary trade union organization of seafarers in Vladivostok back in March 2019. The sailor decided to seek assistance due to the fact that the company refused to pay him sick leave and compensation.

So, the seafarer was injured back in May 2018 while working on board of m/v the Platon (IMO 9102904, flag of Sierra Leone). He got operated in a hospital in South Korea, and then he continued treatment at the Vladivostok polyclinic until August of the same year. However, the shipowner company SK Grand Shipping refused to pay the sick leave for the three months and any compensation. This is a gross violation of the international norms of labor legislation, namely the amendments to Rule 4.2 of the MLC. Thus, the norms of the MLC oblige to pay compensation to seafarers who have suffered from accidents, an integral part of which is also the payment of sick leave. The company also refused to provide the boatswain with an incident report. SK Grand Shipping explained its position by the fact that they are the manager, not the owner of the vessel and the employer, insisting that the beneficial employer is a foreign company Pratis Corporation, registered in the Virgin Islands. The seafarer's employment contract, however, was signed by SK Grand Shipping, a company registered in Vladivostok. It was listed as an employer and shipowner in the shipping book. It is also worth mention that Article 8 of the Code of Merchant Shipping of the Russian Federation and art. 2 of MLC contain provisions from which it can be concluded that in this case it is the Russian company SK Grand Shipping is the beneficial shipowner and employer for the crewmembers of the m/v Platon. In this regard, the trade union committee recommended that Nikolay Mikhailovich first undergo a medical consultation commission, and after receiving a medical report on disability, apply to the Social Insurance Fund. After that, it turned out that the company does not pay insurance premiums and taxes on the income of individuals to the budget system of the Russian Federation for the employee N. Kharchenko, that is, he was not officially employed in it. The trade union committee decided to apply to state bodies – the transport prosecutor's office and the investigative department on transport. In August 2020, all the necessary documents were collected and sent to these departments. In December of the same year the transport prosecutor took the necessary measures in the interests of Nikolay Mikhailovich. So, the transport prosecutor found grounds for applying to the court with a claim for recognition of labor relations with the Russian company SK Grand Shipping and about the need to oblige the company to make payments to funds and taxes provided for by federal laws of the Russian Federation. In support of the position of the prosecutor's office and the boatswain in court, the trade union committee made a request to the administration of the flag state, Sierra Leone, to submit a copy of the Declaration of Compliance with the requirements of the MLC 2006, Part Two, as well as a Certificate of Compliance with Labor standards. In these documents, valid for the period of the boatswain's work on the ship, the Russian company SK Grand Shipping acted as the shipowner and employer responsible for insurance and payment of wages, and, accordingly, payment of sick leave. It should be noted that even after that, not everything went smoothly. The first hearing ended with a refusal due to allegedly missed deadlines for applying to the court. In response, the transport prosecutor filed an appeal in order to recognize the employment relationship with the Russian company SK Grand Shipping and the obligation to submit an act in the form H-1 for the Social Insurance Fund of the Russian Federation, to pay to the budget system of the Russian Federation the taxes established by law (income tax) and insurance premiums (payments for mandatory pension insurance, mandatory social insurance in case of temporary disability, mandatory medical insurance), to pay the seafarer temporary disability allowance. On October 8, 2021 all the demands of the prosecutor and the boatswain were finally satisfied in full by the Pervomayskiy court of In Vladivostok. «I would like to note that this is the first case in judicial practice when the transport prosecutor's office supported the claim of a citizen of the Russian Federation against a Russian shipowner in regard of the vessel under flag of convenience. Until recently, such claims were not even accepted by Russian courts with reference to the lack of jurisdiction, since all disputes should be regulated in accordance with the law of the flag state. This traditional approach deprived our seafarers of the opportunity to seek the truth in a Russian court», - says the chairman of the seafarers' trade union committee of Vladivostok, Petr Osichanskiy. Alexandra Zgorzhelskaya, deputy chairman of the trade union committee, took part in the court session. After the decision was made, she listened to sincere gratitude from Nikolay Mikhailovich himself, who said that without the support of the prosecutor's office, the trade union and the investigative department on transport, he would not have coped. Now the case is at the stage of appeal by the defendant. But in the near future, an end will be put to this long process. The SUR hopes that only in favor of the tireless fighter for his rights, boatswain Kharchenko.

The source: sur-vl.ru